THE JOLLIEST TIME OF THE YEAR

By Mark F. Kluger and William H. Healey

Holiday parties mark the start of our busy season. After all, take some holiday bonus money, combine it with a fancy venue, dressed up co-workers, dance music and most importantly, free flowing alcohol, mix it all together and six months later, we get a crop of new hostile work environment lawsuits. We love it! But truthfully, we would rather employers avoid the resulting litigation hangover.

There are some steps worth taking in advance to attempt to limit or even avoid workplace parties gone wild. Nobody ever listens to our first tip, which is skip the alcohol, so we’ll start with the second best tip.

Pre-Game Pep Talk

A few days before the party, even if it makes you feel old or Scrooge-like, let everyone know in writing that the holiday party is not a free for all, that it is a work event and that you expect them to behave politely. A recent Harris Interactive survey showed that only 16% of responding employees had seen a policy or set of expectations distributed before their company holiday party. There is no reason not to be direct. Just say: keep the alcohol in check, keep your hands to yourself, be aware and respectful of the different religions that your co-workers celebrate, and end with “Let’s just go out there and have some good, clean fun.” It is worth a shot.

Make It Voluntary

This may be more important than you think. Even if attendance is important to an employer, it is far more beneficial to let employees know that they do not have to attend. Make it clear that brownie points will not be awarded for participation and absence will not be penalized. While team building and camaraderie can be important dividends from holiday events, the risk of an uncomfortable employee transitioning to an angry, litigious employee at a holiday party may outweigh the upside. If that employee comfortably skips the event, it might be a win for everyone. It is just important to remind co-workers not to alienate the employee for skipping it.

Sexual Healing

This is typically where things unravel. Twenty nine percent (29%) of employees surveyed in 2013 reported experiencing or seeing sexual harassment at a company holiday party. If the pre-game does not work, it is important to have hall monitors standing by to keep obvious behavior in check. It is absolutely worth designating the HR professionals and deputizing some grown up managers to work the room (and more importantly the nooks). No employer needs to decide whether behavior is consensual at the time; the behavior just needs to stop at the company event. “Get a room” works. This does not mean looking only for corner canoodling. Look for and find the guy who thinks he is the funniest one in the room (and likely the loudest). You can do so by following the laugh track. Chances are the material is tainted. Keep in mind: (1) the material is probably not that funny (especially if everyone were sober), and (2) the cost per laugh is high.

Gift Exchanges

If doing a gift exchange, there should be clear rules. There are too many avoidable “edible underwear” cases. Gifts of a religious nature, however well-meaning, should be for friends, not co-workers. Even a nice ornament for one who does not celebrate Christmas might cause offense. Likewise, alcohol for those who don’t do that either, for religious or other reasons, will not create good will. Like the party, this activity should also be voluntary. Make it an “opt-in” meaning allow those who want to participate to sign up rather than have someone who is not in the spirit have to opt out. And if on game day, with everyone watching, an unfortunate soul opens that annual phallic gag gift, no matter how hard the laughter, the most senior manager in the room had better say that it is not ok….and with conviction.

Religious Stuff

There are a lot of legal and practical issues around this topic. Although by now many employers have accepted the neutral “holiday” designation for the event, renaming it alone does not necessarily de-Christmas the party. Christmas trees and the Santa Clause (lawyer joke) are not religious symbols and it can be successfully argued legally that having them at the party does not “impose” any religion on attendees. Employers have, however, been sued for requiring non-Christians to wear a Santa hat at work and requiring employees to answer company phones “Merry Christmas” when in conflict with personal religious beliefs. So ultimately the question for employers is whether they want everyone who attends the company party to feel that their religion is either represented or at least their religious beliefs are respected (and those are two different concepts). Not every religion need be recognized as part of the “holiday” party because not every religion has a holiday that corresponds with this time of year. The key is to avoid making anyone feel ostracized for not celebrating Christmas. Too much focus on “Christmas” activities might make an employee who does not celebrate feel unwelcome. So the gift exchange does not need to be called “Secret Santa” and inviting all employees to contribute personal cultural or religious symbols or ornaments to the tree might help create a new inclusiveness around an old tradition. And please, no good has ever come from any co-workers sitting on Santa’s lap at a company holiday party. Seriously, never.

After Party

Here is the deal on the “after party.” We all know what it is about. So it cannot be organized by the employer. Period. While it may happen regardless and everyone who is expected to attend knows in advance, if management participates in any way, the liability for what occurs remains with the employer. That means, the employer should not arrange it, pay for it, invite the exclusive guest list and management employees should not attend. If it is for the managers, then keep non-managers out and know what you are getting into from the outset.

Transportation

The Harris Interactive poll noted that 12% of employees surveyed attended a holiday party in which the employer collected their keys at the door and returned them only to those deemed sober enough to drive. Unless you breathalyze everyone, this is a bad idea. That same survey showed less than a third of the employees had holiday party transportation provided by the employer. Our question on this issue is always, transportation to where? If it is back to a company parking lot where the employee will still get into their own car and drive home drunk, then what has been accomplished? That is especially true when there is drinking on the bus ride. If the event is at a public venue, employers are better off letting the “professionals” handle it…meaning the bar tenders and valets. At least the risk is spread. As harsh as that sounds, we do recommend that employers have their own layer of protection against allowing employees to drive away from the holiday party in a dangerous condition. That means the same grown up sexual harassment spotters ought to keep an eye on the exit and make it known that the company will pay for Uber or some other service to deliver employees to their doorsteps if it appears they cannot get home on their own. Amnesty for needing such a service might also be good leverage throughout the year. Did we mention, skip the alcohol?